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LAS VEGAS — Today, Nevada’s Eighth Judicial District Court heard arguments in the Nevada Policy Research Institute’s public records lawsuit against the Clark County School District. At issue in this morning’s hearing was CCSD’s motion to dismiss the lawsuit.

After the hearing, Joseph Becker, the director of NPRI’s Center for Justice and Constitutional Litigation, who is representing NPRI in the lawsuit, released the following comments.

The Nevada Public Records Act (NPRA) considers all government records to be public documents available for disclosure unless otherwise explicitly made confidential by statute or by a balancing of public interests against privacy or law enforcement justifications for nondisclosure.

The Legislature has declared that the purpose of the NPRA is to further the democratic ideal of an accountable government by ensuring that public records are broadly accessible. In 2007, in order to better accomplish these purposes, the Legislature amended the NPRA to provide that its provisions must be liberally construed to maximize the public's right of access. In addition, the Legislature amended the NPRA to provide that if a state entity withholds records, it bears the burden of proving, by a preponderance of the evidence, that the records are confidential.

Therefore, citizens must be given access to government records and must be able to communicate easily and conveniently with those government officials.

Both in its motion to dismiss and at today’s hearing, CCSD relied heavily on NRS 239B.040 — a statute the intent of which is to make email addresses provided to governments by citizens for the purpose of communicating with that government confidential. Clearly, this statute does not apply when a government entity creates the email addresses.

CCSD also argued that fulfilling NPRI’s public records request would create a spam issue for teachers. Becker continued:

First, it’s essential to note that efficiency is not the guiding principle in public records law. Rather, it’s about open government and abiding by the principle that government officials serve the public, not the other way around. So unless the government is considering the consequences of legitimate law enforcement or privacy concerns or statutory exemptions which explicitly make records confidential, the law doesn’t allow hypothetical consequences of releasing the records — as imagined by government bureaucrats — to be a factor in public records decisions.

Second, we don’t need to guess what happens when thousands of teachers’ email addresses are publicly available — we already know. As detailed in our opposition brief, there is a website that currently contains over 8,000 email addresses for CCSD teachers. If having thousands of teacher emails publicly available would lead to teachers not being able to do their jobs because of a spam deluge, as was suggested today, it would already be happening. But it’s not. Instead, CCSD is hiding behind an empirically disproven hypothetical to avoid following the law.

The law is on the side of NPRI and transparent government.

Becker urged Judge Douglas Smith to follow the law to include recent Supreme Court precedent and reject CCSD’s motion to dismiss.

The Eighth Judicial District court is now considering CCSD’s motion to dismiss and District Court Judge Douglas Smith said he would make a decision within a week or so.

Requested in the lawsuit are 1) the public records, 2) that the court enjoin CCSD from delaying and denying future legitimate public records requests, and 3) costs and attorney fees.

Case documents:

• An official copy of Defendant Clark County School District’s Reply in Support of Defendant CCSD’s Motion to Dismiss
• An official copy of the CJCL’s Opposition to Defendant Clark County School District’s Motion to Dismiss including attachments  
• An official copy of Defendant Clark County School District’s Motion to Dismiss
• An official copy of CJCL’s original complaint

The Center for Justice and Constitutional Litigation is a public-interest law organization that litigates when necessary to protect the fundamental rights of individuals as set forth in the state and federal constitutions.

Learn more about the Center for Justice and Constitutional Litigation and this case at http://npri.org/litigation/.

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LAS VEGAS — Can the Clark County School District effectively exempt itself from the Nevada state law mandating openness of public records?

That will be the real issue at stake tomorrow when the Center for Justice and Constitutional Litigation at the Nevada Policy Research Institute appears in court pursuing its demand that CCSD comply with the law.

NPRI, citing the Nevada Public Records Act, NRS Chapter 239, has requested that the district make available its government-issued and -maintained email addresses for public-school teachers.

The Eighth Judicial District court will hear and potentially rule on CCSD’s motion to dismiss. As detailed here, the school district’s motion to dismiss relies on out-of-context and irrelevant statutory excerpts.

What: Hearing in NPRI’s public records lawsuit against the Clark County School District.

When: July 2, 2013, at 8:00 a.m.

Where: Eighth Judicial District Court, Division VIII, Courtroom 16D, Regional Justice Center, 200 Lewis Avenue, Las Vegas, NV 89155.

Who: Parties include the Nevada Policy Research Institute, the Public Education Foundation, and the Clark County School District.  The presiding judge will be Douglas E. Smith.

Note: The Court schedules numerous hearings at once, and the particular order in which cases will be heard is unknown.

Requested in the lawsuit are 1) the public records, 2) that the court enjoin CCSD from delaying and denying future legitimate public-records requests, and 3) costs and attorney fees.

Case documents:

• An official copy of Defendant Clark County School District’s Reply in Support of Defendant CCSD’s Motion to Dismiss
• An official copy of the CJCL’s Opposition to Defendant Clark County School District’s Motion to Dismiss including attachments  
• An official copy of Defendant Clark County School District’s Motion to Dismiss
• An official copy of CJCL’s original complaint

The Center for Justice and Constitutional Litigation is a public-interest law organization that litigates when necessary to protect the fundamental rights of individuals as set forth in the state and federal constitutions.

Learn more about the Center for Justice and Constitutional Litigation and this case at http://npri.org/litigation/.

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LAS VEGAS — Today, the Nevada Policy Research Institute’s Center for Justice and Constitutional Litigation filed an opposition to the Clark County School District’s motion to dismiss the Center’s public-records case against CCSD.

NPRI, seeking a list of government-issued email addresses for CCSD teachers, filed its lawsuit on March 28, 2013. Relying on out-of-context excerpts of Nevada law, CCSD asked the court on May 24, 2013 to dismiss.

In the just-filed response, Joseph Becker, CJCL’s director representing NPRI in the lawsuit, identifies the tortured logic behind the district’s legal arguments against government transparency.

“CCSD has resorted to citing out-of-context excerpts of the law in order to try and justify not following Nevada’s Public Records Act. The law is perfectly clear — these government-issued email addresses for government employees are public information, and CCSD is obligated to release the records, instead of spending taxpayer dollars fighting to withhold from taxpayers this public information.”

Becker noted that the chief legal argument relied upon in CCSD’s Motion to Dismiss cites NRS 239B.040, a Nevada Statute of which even a cursory reading reveals is inapplicable to the legal issue at hand. 

“Although passages craftily — or deceptively — excerpted by CCSD suggest some relevance to this case, read in context, it is abundantly clear that NRS 239B was enacted to protect those who interact and provide private information to government from having certain information they disclosed, in turn, made public by government,” said Becker. “It certainly does not apply to records and information generated by the government itself.

“CCSD’s motion to dismiss also relies on NRS 603.070, a trade-regulation statute enacted to protect computer software programming code from being misappropriated. This, of course, is not relevant to NPRI’s public-records request of a non-proprietary e-mail directory generated by CCSD itself.

“Accepting CCSD’s tortured interpretation of NRS 603 to exclude the public records created with proprietary software programs would gut Nevada’s Public Records Law completely. For example, all government documents or correspondence created with Microsoft Word™ or Microsoft Excel™ would, under CCSD’s interpretation of the statute become non-disclosable because the documents were created, stored, and/or manipulated using proprietary software from Microsoft, Inc.”

NPRI’s Opposition to CCSD’s Motion to Dismiss also includes an affidavit from NPRI reporter Karen Gray giving four specific examples of how CCSD regularly delays and stonewalls her requests for records. In one case, it took over nine months and a meeting with then-superintendent Dwight Jones to receive the records she requested. CCSD has yet to fulfill two of her listed requests. The open-records statute generally allows five business days for the production of records.

Becker also stated, “Nevada court rulings have established that even email content from government officials’ mailboxes are subject to Nevada’s Public Records Act, so it’s a waste of tax dollars for CCSD bureaucrats to contend in court that government-provided email addresses for government employees are confidential.”

Becker then noted that the Nevada Supreme Court recently authoritatively re-affirmed that, under the NPRA, access to public records “must be construed liberally” and that restrictions on access “must be construed narrowly.”

A hearing on CCSD’s motion to dismiss is scheduled in Clark County District Court on July 2, 2013, at 8 a.m.

Read more:

• An unofficial copy of the CJCL’s Opposition to Defendant Clark County School District’s Motion to Dismiss without attachments is available here: http://transparentnevada.com/static/NPRI_Opposition_to_CCSD_Motion_to_Dismiss-Main.pdf
• An unofficial copy of the CJCL’s Opposition to Defendant Clark County School District’s Motion to Dismiss including attachments is available here (large file): http://transparentnevada.com/static/NPRI_Opposition_to_CCSD_Motion_to_Dismiss.pdf
• An official copy of Defendant Clark County School District’s Motion to Dismiss is available here: http://www.npri.org/docLib/20130611_Defendant_Clark_County_ School_
  District_s_Motion_to_Dismiss_Mdsm2.pdf
• An official copy of CJCL’s original complaint is available here: http://www.npri.org/docLib/20130328_NPRIvCCSDComplaint.pdf

The Center for Justice and Constitutional Litigation is a public-interest law organization that litigates when necessary to protect the fundamental rights of individuals as set forth in the state and federal constitutions.

Learn more about the Center for Justice and Constitutional Litigation at http://npri.org/litigation/.

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